The Problem of Risk in International Criminal Law

Transcription

1 Barry University School of Law Digital Barry Law Faculty Scholarship 2014 The Problem of Risk in International Criminal Law Mark A. Summers Barry University Follow this and additional works at: Part of the Criminal Law Commons, and the International Law Commons Recommended Citation Mark A. Summers, The Problem of Risk in International Criminal Law, 13 Wash. U. Global Stud. L. Rev. 667 (2014) This Article is brought to you for free and open access by Digital Barry Law. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Digital Barry Law.

2 THE PROBLEM OF RISK IN INTERNATIONAL CRIMINAL LAW MARK A. SUMMERS" I. INTRODUCTION Calibrating individual responsibility for group criminality is one of the most difficult challenges international criminal law faces. Beginning at Nuremberg and continuing with the ad hoc tribunals, courts have struggled with this issue. 1 International crimes are, by definition, large-scale operations involving hundreds, even thousands, of participants. 2 Because the mission of international criminal law is to punish "the most serious crimes of concern to the international community," 3 its targets are defendants who occupy civilian or military leadership positions while the crimes they are prosecuted for are committed by individuals loosely connected to the leaders on battlefields miles away. 4 The leaders, who set in motion a campaign of ethnic cleansing or genocide, are obviously more culpable than those who implement the plan. But should the leaders be held responsible for all the crimes committed by their subordinates, even if those crimes were not part of the original plan? One solution could be enterprise liability; that is, defendants are liable because of their membership in the group and not for crimes committed by others in the group that are attributed to them. This solution was attempted at Nuremberg based on a United States proposal that the International Military Tribunal (IMT) would "try the criminality of the organizations themselves" and individual defendants would then be convicted based on their membership in those organizations. 5 The IMT partially rejected this * Professor of Law, Barry University, Dwayne 0. Andreas School of Law; B.A., Washington and Jefferson College; J.D., West Virginia University; LL.M, Cambridge University (International Law). I would like to thank the Barry University School of Law for its support in the writing of this Article. I. Neha Jain, The Control Theory of Perpetration in International Criminal Law, 12 CHI.J.INT'L L. 159, 160 (2011). 2. id. at Rome Statute of the International Criminal Court, Preamble, July 17, 1998, 2187 U.N.T.S. 3 [hereinafter Rome Statute]. 4. Jain, supra note 1, at Allison Marston Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 CAL. L. REV. 75, 113 (2005) [hereinafter Danner & Martinez]; Charter of the International Military Tribunal at Nuremberg, Annex to the London Agreement, art. 10, Aug. 8, 1945, 82 U.N.T.S. 279 [hereinafter Nuremberg Charter]: 667

3 668 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 13:667 solution by placing the burden on the prosecution to prove that a defendant voluntarily and knowingly participated in the group's criminal activities. 6 Since Nuremberg, no international criminal court has accepted group membership alone as a basis for individual criminal liability. 7 While enterprise liability was not accepted in international criminal law, conspiracy, as a way of attributing liability for crimes committed by members of a criminal group, was. 8 Article 6 of the Nuremberg Charter 9 provided that defendants who participated in the common plan or conspiracy were responsible "for all acts performed by any persons in execution of such plan." This was the seed from which the International Criminal Tribunal for Yugoslavia's (ICTY) doctrine of joint criminal IO enterpnse grew. In 1993, the U.N. Security Council created the ICTY to prosecute crimes that occurred during the war in Yugoslavia. 11 A year later, the Security Council established another ad hoc tribunal, the International Criminal Tribunal for Rwanda (ICTR), to prosecute the crimes that occurred during the genocide in Rwanda. 12 Although these tribunals had jurisdiction over crimes, which by their very nature are usually collective, 13 their governing statutes seemingly ignored this fact in the prov1s10ns dealing with individual criminal responsibility. Those provisions stipulated that "a person who planned, instigated, ordered, [or] In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts. 6. Danner & Martinez, supra note 5 at 115; see also Saira Mohamed, Remarks by Saira Mohamed, 105 AM. Soc'Y INT'L L PROC. 321 (Mar ) (observing that the IMT "certainly placed significant limitations on the reach of conspiracy liability and the criminal organizations doctrine"). 7. Danner & Martinez, supra note 5 at Id. at Nuremberg Charter, supra note 5, art. 6 provides: Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. Id. (emphasis added). I 0. Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 7, U.N. Doc. S/RES/827 (May 25, 1993) [hereinafter ICTY Statute]. 11. Id. 12. Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955 (Nov. 8, 1994) [hereinafter ICTR Statute]. 13. See, e.g., Rome Statute, supra note 3, art. 8 (War crimes are "committed as part of a plan or policy or as part of a large scale commission of such crimes") and art. 7 (Crimes against humanity are "part of a widespread or systematic attack directed against any civilian population"); see also Jain, supra note I ("An international crime such as genocide typically involves widespread participation by a very large number of people... ").

4 2014] PROBLEM OF RISK IN INTERNATIONAL CRIMINAL LAW 669 committed" a crime was individually responsible without mentioning attribution of criminal liability for crimes committed by others who were members of a group to which the defendant belonged. 14 They contained no analog to Article 6 of the Nuremberg Charter or any other type of associational liability, except aiding and abetting another person in the planning, preparation, or execution of a crime. 15 But because aiders and abettors need only know that they are providing assistance to the principal perpetrator of the crime, they are viewed as having a "lower level of criminal culpability," 16 which would inadequately reflect the guilt of those in leadership positions. 17 Not surprisingly, then, the ICTY faced the issue of how to attribute liability for crimes among the members of a group in its first case. 18 The Tadic court solved the problem by finding that a defendant, who was part of a joint criminal enterprise (JCE), was liable for crimes committed by other members of the group. 19 The Tadic Appeals Chamber discovered three forms of JCE liability-ice I (basic/shared intent); JCE II (systemic/prison camp); and JCE III (extended/other foreseeable crimes)2 -which it said were grounded in customary international law? 1 Because it makes members of a JCE III liable for crimes that are outside the criminal purpose of the enterprise so long as those crimes are "foreseeable," 22 the Tadic Court's conclusion that the extended form of liability (JCE III) is customary law has been vigorously challenged by 14. ICTY Statute, supra note IO, art. 7(1); ICTR Statue, supra note 12, art. 6(1). The statutes of other post-nuremberg ad hoc tribunals are identical in this respect to those of the ICTY and ICTR: See Statute of the Special Court for Sierra Leone, art. 6(1), U.N. Doc. S/RES/1315 (Aug. 13, 2000), available at I MJeEw /o3d&; Law on. the Establishment of the Extraordinary Chambers, art. 29, 27(NS/RKM/1004/006) (Oct. 27, 2004), available at _Law_ as _amended_ 27 _ Oct_ 2004_Eng.pdf. 15. Significantly, none of these statutes provided for attribution of liability by conspiracy as the Nuremberg Charter did. See supra text accompanying note 9; See, e.g., ICTY Statute, supra note I 0, art. 7(1 ). 16. Gunel Guliyeva, The Concept of Joint Criminal Enterprise and ICC Jurisdiction, 5 EYES ON THE ICC 49, 51 ( ) (quoting Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Judgment (Int'!. Crim. Trib. for the Former Yugoslavia July 15, 1999) [hereinafter Tadic Appeal Judgment]. 17. Id. (There are "situations where the weight of other participants' contributions is no less than that of physical perpetrators and where the previously mentioned modes of participation do not fairly reflect 'the moral gravity' of such contributions.") (quoting Appeals Tadic Appeal Judgment). 18. Tadic Appeal Judgment, supra note 17. I 9. Id. ilil Guliyeva, supra note 16, at 52. The criteria for liability under the three forms of JCE will be discussed in greater detail in Part II, infra. 2 I. Tadic Appeal Judgment, supra note 17, iii! Id. ii 204 passim.

5 670 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 13:667 scholars. 23 Also, it has been argued that there is no basis for JCE III liability in the statutes of the international criminal tribunals. 24 Despite these criticisms and many others, 25 JCE I and II, as well as JCE III, have been "adopted without modification by most subsequent cases." 26 The Rome Statute of the International Criminal Court (ICC), 27 unlike the ICTY and ICTR statutes, has two provisions dealing with group criminality. Article 25(3)(a) provides that a person who "[ c ]ommits... a crime [within the jurisdiction of the Court] whether as an individual, [or] jointly with another or through another person... is criminally responsible." 28 Article 25(d) makes a person criminally liable who "[i]n any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose." 29 Joint liability in Article 25(3)(a) reflects the concept of co-perpetration, 30 while Article 25(d) resembles a form of aiding and abetting collective criminality. 31 Like JCE I, Article 25(a) makes a co-perpetrator liable for crimes that are expressly part of a plan formulated by a group of which he was a member even though he did not perform every act necessary to complete the crimes. 32 Since the Rome Statute was elaborated, however, it has been the subject of intense scholarly debate whether Article 25(a)(3) attributes liability for so-called "deviant" crimes, i.e., those that are not part of the plan but are nonetheless foreseeable consequences of it Jens David Ohlin, Joint Intentions to Commit International Crimes, 11 CHI. J. INT'L L. 693, 709, ( ) (questioning whether prior to Tadic "there was a single case applying international criminal law or the international law of war that held a defendant vicariously responsible for the foreseeable actions of other members of a common criminal enterprise that nonetheless fell outside the scope of the criminal plan"); Id. at 712 (concluding that "there remains no non-questionbegging rationale for JCE III in customary international law"); George P. Fletcher& Jens David Ohlin, Reclaiming Fundamental Principles of Criminal Law in the Darfur Case, 3 J. INT'L CRIM. JUST. 539, 548 (2005) ("The history of the doctrine [JCE] is one of judicial creativity."). 24. Kai Ambos, Joint Criminal Enterprise and Command Responsibility, 5 J.INT'L CRIM. JUST. 159, 173 (2007) ("JCE II and Ill constitute new and autonomous (systemic) concepts of imputation without an explicit basis in written international criminal law."). Art. 6 of the Nuremberg Charter contradicts this conclusion. In fact, it goes even further than JCE Ill by imposing liability for "all acts," not just foreseeable ones. Nuremberg Charter, supra note The criticisms of JCE are catalogued in Guliyeva, supra note 16, at Ambos, supra note 24, at Rome Statute, supra note Id. art. 25(3)(a). 29. Id. art. 25(3)(d). 30. Jain, supra note I, at ; Ambos, supra note 24 at Ambos, supra note 24, at See infra note 54 and accompanying text. 33. Compare, e.g., ANTONIO CASSESE, INTERNATIONAL CRIMINAL LAW 212 (2d ed. 2008) (finding that all three types of JCE are included in Article 25(3)(a)), with Fletcher & Ohlin, supra note

6 2014] PROBLEM OF RISK JN INTERNATIONAL CRIMINAL LAW 671 The search for an answer to the question whether the Rome Statute includes a form of such liability depends upon another of its provisions, Article 30, which states that "[u]nless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge." 34 In the first case decided by an ICC Trial Chamber, Prosecutor v. Lubanga, 35 the court explicitly rejected the earlier holding of a Pre-Trial Chamber 36 when it decided that liability based on some form of recklessness or do/us eventualis (JCE III) 37 was "deliberately excluded" from Article Despite the Lubanga Trial Chamber's rejection of recklessness and its civil law cousin, do/us eventualis, as mental states which could support a conviction for a violation of international criminal law, some theory of liability for conduct where the mental state of the perpetrator is less than intentional or knowing is essential if the ICC is to carry out its mandate to "put an end to impunity for the perpetrators of these crimes." 39 Moreover, since risk-taking is an essential feature of recklessness, 40 the Lubanga Trial Chamber opened the door to such an approach when it held that. the implementation of the co-perpetrators' common plan must "[embody] a sufficient risk that, if events follow the ordinary course, a crime will be committed. " 41 There is, however, a lack of clarity in international criminal law regarding the standard that should be applied in attributing liability for risky conduct. 42 An approach that is too lax can result in overly expansive liability that exceeds culpability. 43 An approach that is too restrictive can produce impunity for conduct that is worthy of punishment. 44 This Article 23, at 548 (arguing that Article 25(3)(a) "effectively replaced" JCE as it was applied by the JCTY), and Ambos, supra note 24, at (asserting that JCE I is a form of co-perpetration within the meaning of Article 25(3)(a) but JCE II and Ill are not). 34. Rome Statute, supra note 3, art. 30(1 ). 35. Prosecutor v. Lubanga, Case No. JCC-01/04-01/06-248, Judgment (Mar. 14, 2012) [hereinafter Lubanga Judgment]. 36. Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Decision on the Confirmation of Charges (Jan. 29, 2007) [hereinafter Lubanga PTC Decision] See Johan D. van der Vyver, infra note 138, at Lubanga Judgment, supra note 35, atif Rome Statute, supra note 3, at Preamble. 40. MODEL PENAL CODE, cmt (1985). 41. Lubanga Judgment at if See, e.g., infra pp Ronald C. Slye & Beth Van Schaack, INTERNATIONAL CRIMINAL LAW: The ESSENTIALS 293 (2009). 44. Id.

7 672 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 13:667 will explore the causes of this lack of clarity beginning with the Tadic case and the post-tadic decisions of the ICTY. Then it will analyze the nascent case law of the ICC to see how the Court has dealt with this problem so far. Finally, this Article will suggest a solution, based on the Model Penal Code approach to recklessness, which strikes the proper balance between over attribution and under punishment. II. TADIC AND CRIMINAL LIABILITY BASED ON RECKLESSNESS In Tadic, the Appeals Chamber of the ICTY faced a dilemma. Tadic had been acquitted by the Trial Chamber of the most serious crimes with which he was charged, the murders of five individuals from the village of JaskiCi. 45 His participation in those crimes did not amount to direct perpetration, 46 nor was he liable under the theory of superior responsibility. 47 Without another theory of individual responsibility, 48 the Trial Chamber's decision would have to stand. Consequently, the Appeals Chamber searched for and found what it deemed to be a theory of customary international law 49 that justified Tadic's conviction. The theory was "common purpose" liability, 50 which the Tadic court said "encompasses three distinct categories of collective criminality," 51 which have come to be known as Joint Criminal Enterprise (JCE) I, II and III Tadic Appeal Judgment ii Direct perpetration is planning, instigating, ordering or committing. ICTY Statute, supra note 10, art. 7(1). For an analysis of the evidence against Tadic, see infra p ICTY Statute, supra note 10, art. 7(3). 48. Tadic could have been held liable as an aider and abettor under ICTY Statute, art. 7(1 ), but to have done so would have "understate[d] the degree of [his] criminal responsibility." Tadic Appeal Judgment at ij Tadic Appeal Judgment ilij Tadic Appeal Judgment ii Id. 52. Commentators have criticized the Tadic Appeals Chambers' conclusion that the third category of JCE (JCE 111) is customary international law. See, e.g., Danner & Martinez, supra note 5, at 110 ("The cases cited in Tadic... do not support the sprawling form of JCE, particularly the extended form of this kind ofliability, currently employed at the ICTY."); Kai Ambos, Amicus Curiae Brief in the Matter of the Co-Prosecutors' Appeal of the Closing Order Against Kaing Guek Eav "Duch" dated 8 August 2008, 20 Criminal Law Forum 353, (2009), available at More recently, one of the ad hoc post-icty tribunals, the Extraordinary Chambers in the Courts of Cambodia, held that JCE 111 was not customary international law in , the time period relevant to Case 002. Prosecutor v. Ieng et al., Decision of the Pre-Trial Chamber on the Appeals Against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE), iii! 77-78, and 87, Case No ECCC/OCIJ (PTC38) (May 20, 2010), available at _9 _ EN.pdf.

8 2014] PROBLEM OF RISK IN INTERNATIONAL CRIMINAL LAW 673 While this Article focuses principally on JCE III, a brief description of all three forms is appropriate. A. JCEI The most basic, and least controversial, form of JCE liability is the common enterprise/shared common intention category (JCE 1). 53 The Tadic Appeals Chamber described JCE I as,... all co-defendants, acting pursuant to a common design possess the same criminal intention; for instance, the formulation of a plan among the co-perpetrators to kill, where, in effecting this common design (and even if each co-perpetrator carries out a different role with it), they nevertheless all possess the intent to kill Unfortunately, this form of JCE could not support a finding that Tadic had participated in the murders. While the evidence proved that he "actively took part in the common criminal purpose to rid the Prijedor region of the non-serb population," and that it was "beyond doubt" that he was "aware of the killings accompanying the commission of inhumane acts against the non-serb population," 55 evidence of awareness (knowledge) was insufficient to prove beyond a reasonable doubt that Tadic shared the intention to kill the victims. B. JCEII The second category of JCE liability-the "systemic form" 56 -is not relevant to the facts in Tadic. 57 This form of liability is derived from the concentration camp cases where, in order to establish the liability of the camp commander, or others higher up the chain of command, the prosecution must prove: (i) the existence of an organized system to ill-treat detainees and commit the various crimes alleged; (ii) the accused's awareness of the nature of the system; and (iii) the fact that the accused in some way actively participated in enforcing the system, i.e., encouraged, 53. See Ambos, supra note 24, at Tadic Appeal Judgment ij I Id. ij Id. iii! ; Ambos, supra note 24, at 160 (describing JCE II as the "systemic form" of JCE). 57. Tadic Appeal Judgment ij 203.

9 674 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 13:667 aided and abetted or in any case participated in the realisation of the common criminal design. 58 Based on these criteria, JCE II requires knowledge of the result (ill treatment of prisoners) and some affirmative act of participation in the enterprise. JCE II could not solve the problem the Tadic Appeals Chamber faced because, most obviously, the crimes did not take place in a prison camp setting. So the Tadic court had to look even further, venturing into what some believe was entirely new territory, 59 where it found JCE III. C. JCE Ill The third category of JCE, the "so-called 'extended' joint enterprise," 60 exists where one of the co-actors commits a crime not within the scope of the common plan but which constitutes a "natural and foreseeable consequence" of the execution of the plan. 61 The Tadic Appeals Chamber gave an example of JCE III that was eerily similar to the facts in Tadic itself. It posited a hypothetical common plan to ethnically cleanse a village during which one or more of the villagers were killed. 62 While killing civilians was not part of the plan, "it was nevertheless foreseeable that the forcible removal of civilians at gunpoint might well result in the deaths of one or more [of them]. " 63 Here, unlike JCE I or JCE II, attribution of criminal liability for the murders is cut loose from the mens rea requirements of intent to produce, or even knowledge of, the result. Instead criminal attribution rests on the more elastic concept of foreseeability. No wonder ICTY prosecutors have used JCE as a theory of liability so frequently; 64 it relieves them to a substantial degree of their burden of proof and exposes defendants to punishment for the most serious offenses on proof arguably amounting to little more than simple negligence Id. ii See supra note 52; see also Ambos, supra note 24, at Ambos, supra note 24, at Tadic Appeal Judgmentil Id. 63. Id. 64. One study showed that from its genesis in Tadic until 2004, JCE was alleged in 64% of the ICTY indictments. Danner & Martinez, supra note 5, at If "acting in concert" is added as a theory for attributing liability, the total rises to 81 %. Id. 65. Id. at

10 2014] PROBLEM OF RISK IN INTERNATIONAL CRIMINAL LAW 675 Tadic set out the elements that must be proven to establish membership in a JCE III. 66 There are three actus reus elements that are the same for all three categories of JCE: 67 (1) a plurality of persons; (2) a common plan, design or purpose amounting to or involving the commission of a crime within the ICTY statute; and (3) a participation element-the members of the group must assist in or contribute to the execution of the plan. 68 The mens rea element, however, is different for JCE I and JCE III. For ICE I, the mens rea is "the intent to perpetrate a certain crime" shared by all the co-perpetrators. 69 By contrast, for JCE III, there must be "the intention to participate in and further the criminal activity or the criminal purpose of a group... or in any event to the commission of a crime by the group," 70 and for a defendant to be liable for a crime other than one included in the group's plan, it must have been ''foreseeable that such a crime might be perpetrated by one or other members of the group and... the accused willingly took that risk.'m The post-tadic cases did not interpret its holding consistently, leading to substantial confusion, especially regarding the required level of risk awareness 72 and the likelihood that the risk would materialize. 73 Since the Tadic opinion itself is the basis for much of this confusion, it is there we tum first in search of its understanding of risk. 66. JCE lli was not alleged in the indictment as a basis for the defendant's liability for the murders in Jaskici. Id. at n Tadic Appeal Judgment ilij Tadic Appeal Judgment if 227 iii. 69. Id. if Id. In most, if not all, cases whether the prosecution proves the mens rea element will depend on the defendant's conduct because "[i]n practice, the significance of the accused's contribution will be relevant to demonstrating that the accused shared the intent to pursue the common purpose." Prosecutor v. Kovcka, et al., Case No. IT-98-30/1-A, Judgment if 97 (Int'! Crim. Trib. for the Fonner Yugoslavia Feb. 28, 2005), available at pdf[hereinafter Kovcka Appeal Judgment]. 71. Tadic Appeal Judgment if Compare Kovcka Appeal Judgment ii 86 ("A participant may be responsible for such crimes only if the Prosecution proves that the accused had sufficient knowledge such that the additional crimes were a natural and foreseeable consequence to him."), with Prosecutor v. S. Milosevic, Case No. IT-02-54, Decision on Motion for Judgment of Acquittal ir 290 (Int'! Crim. Trib. for the Fonner Yugoslavia June 16, 2004 ), _ milosevic/tdec/en/ pdf (stating that attribution is appropriate if"it was reasonably foreseeable to him" that other crimes would be committed by a participant in the joint criminal enterprise). 73. Compare Prosecutor v. Krstic, Case No. IT A, Judgment if 150 (Int'! Crim. Trib. for the Former Yugoslavia Apr. 19, 2004), pdf ("[T]he accused participated in that enterprise aware of the probability that other crimes may result."), with Prosecutor v. S. Milosevic, Case No. IT-02-54, Decision on Motion for Judgment of Acquittal ii 290 (stating that the crime charged must be a "possible consequence" of executing the JCE).

11 676 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW (VOL. 13:667 D. Risk and Mens Rea The facts supporting the existence of, and Tadic's participation in, a JCE were: (1) he was "an armed member of an armed group;" 74 (2) the armed group attacked the village of JaskiCi and Tadic "actively took part in this attack, rounding up and severely beating some of the men;" 75 (3) the armed group was violent, beating some of the men from the village "into insensibility[] as they lay on the road" 76 and threatening witnesses with death as the men were being taken away; and (4) five men, who had been alive, were found dead, after the armed group, including Tadic, had left the village. 77 Based on this evidence the Appeals Chamber concluded: [T]he only possible inference to be drawn is that the Appellant had the intention to further the criminal purpose to rid the Prijedor region of the non-serb population, by committing inhumane acts against them. That non-serbs might be killed in the effecting of this common aim was, in the circumstances of the present case, foreseeable. The Appellant was aware that the actions of the group of which he was a member were likely to lead to such killings, but he nevertheless willingly took that risk. 78 In just this brief passage, the Appeals Chamber used two different terms -"foreseeable" and "aware"-when describing the mens rea required to prove participation in a JCE III. To further complicate the picture, in an earlier portion of the opinion, the Court stated "everyone in the group must have been able to predict this result." 79 As one post-tadic Trial Chamber observed, "[i]t is unfortunate that expressions conveying different shades of meaning have been used... apparently interchangeably." Tadic Appeal Judgment ii Id. 76. Id. 77. Id. ii Id. ii Id. ii 220 (emphasis in the original). The Tadic Appeals Chamber described this state of mind as do/us eventualis or advertent recklessness. Id. Advertent recklessness is recognized in English law. See Stephen P. Garvey, What's Wrong with Involuntary Manslaughter?, 85 TEX.L.REV. 333, 340 n.38 (2006). 80. Prosecutor v. Brdanin and Talic, Case No. IT PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, ii 29 n.112 (Int'! Crim. Trib. for the Former Yugoslavia June ), available at FI2 I 5879.htm.

12 2014] PROBLEM OF RISK IN INTERNATIONAL CRIMINAL LAW 677 Nonetheless, that same Trial Chamber concluded that the words "predictable" and "foreseeable" are truly interchangeable in this context. 81 Both terms involve foretelling that a future event (consequence) will happen. 82 Awareness, on the other hand, is equated with knowledge. 83 It would seem to be epistemologically impossible to have actual knowledge that conduct will bring about a particular result. The Lubanga Trial Chamber recognized this impossibility when it observed that the "coperpetrators only 'know' the consequences of the conduct once they have occurred." 84 Thus, a certain amount of contingency as to the result is built into whichever of the three terms is used, although arguably awareness requires a higher degree of certainty than foreseeability or predictability. 85 It is important to note that the Tadic Appeals Chamber used these three terms in different contexts. The murders of non-serbs by members of the ICE were a foreseeable consequence of the plan to ethnically cleanse the villages by forcibly displacing the residents. 86 "Aware," on the other hand, referred to the defendant's knowledge "that the actions of the group of which he was a member were likely to lead to such killings. " 87 "Predictability," as it is used in Tadic, seems to quantify the likelihood that the risk will materialize, which is very high indeed if "everyone in the group" 88 must be able to predict the specific crime that will be committed. 89 A source of disagreement among the post-tadic Courts is whether the foreseeability of the commission of a crime not within the common plan is determined objectively (from a reasonable person's standpoint) or subjectively (from the defendant's standpoint). 90 The language used by the Tadic Appeals Chamber unequivocally adopts the subjective standard: 81. Id. 82. I THE NEW SHORTER OXFORD ENGLISH DICTIONARY 1003 (Leslie Brown ed., 1993) (defining foresee as "be aware of beforehand; predict"); 2 THE NEW SHORTER OXFORD ENGLISH DICTIONARY 1003 (Leslie Brown ed., 1993) (defining predict as "[a]nnounce as an event that will happen in the future"). 83. I THE NEW SHORTER OXFORD ENGLISH DICTIONARY 157 (Leslie Brown ed. 1993). 84. Lubanga Judgment i The Model Penal Code recognizes that absolute certainty is not required. It defines the required level of certainty for "knowledge" as "practical certainty." The MODEL PENAL CODE 2.20(2)(b)(ii) (I 985). 86. See Tadic Appeal Judgment ii 204. Indeed, in some of the cases relied upon by the Tadic Court, the courts posited a causal relationship between the planned and unplanned crime. Id. ii Id. ii Id. ii Id. i The jurisprudence of the ICTY provides no clear guidance on this question. See Danner & Martinez, supra note 5, at 106. The law in the United States is probably no better. See Note, Developments in the law-criminal Conspiracy, 72 HARV. L. REV. 920, 996 (1959).

13 678 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 13:667 It should be noted that more than negligence is required. What is required is a state of mind in which a person, although he did not intend to bring about a certain result, was aware that the actions of the group were most likely to lead to that result but nevertheless willingly that risk. 91 Nonetheless, some of the post-tadic courts 92 and, significantly, the late Professor/Judge Antonio Cassese, who was on the panel that decided Tadic, concluded that objective (reasonable person) foreseeability was the standard. 93 The implications are quite significant, because if foreseeability is objectively determined then the standard for attributing liability for the most serious crimes is reduced to something akin to negligence. 94 Since objective foreseeability demands only that a reasonable person in the defendant's position would have foreseen the risk that crimes beyond the criminal purpose of the JCE were likely, then the defendant, even if she was not actually aware, "should" have been aware of that risk as well. 95 Imposing liability for serious crimes based upon less than some form of actual risk awareness would run afoul of the principle of culpability. 96 It is unclear how "reasonable foreseeability" found its way into the post-tadic case law. 97 The Tadic Court drew on a number of diverse sources, including post-world War II British and U.S. war crimes cases, 98 World War II war crimes cases prosecuted in the Italian courts, 99 international treaties, 100 and national law cases from both civil and 91. Tadic Appeal Judgment i See, e.g., infra note 113 and cases cited therein. 93. Cassese, supra note 33, at 201; see also Amicus Curiae Brief of Professor Antonio Cassese, 'ii 26, Prosecutor v. Kaing ("Duch"), Case No. 001/ ECCC/OCIJ (PTC 02) at ) (Extraordinary Chambers in the Courts of Cambodia October 27, 2008) {"It would, however, also be necessary for the 'secondary offender'... to be in a position, under the man of reasonable prudence test, to predict the rape."). 94. Danner & Martinez, supra note 5, at See Cassese, supra note 33, at (arguing that this "lower threshold" of liability is appropriate). 96. See Guliyeva, supra note 16, at 62 (citing Ambos, supra note 24, at 175). 97. The only support for this position in the Tadii: case itself comes from its citation of the Pinkerton doctrine (United States v. Pinkerton, 328 U.S. 640 (1946)) which it said imputed criminal responsibility "for acts committed in furtherance of a common criminal purpose, whether the acts are explicitly planned or not, provided that such acts might have been reasonably contemplated as a probable consequence or likely result of the common criminal purpose." Tadic Appeal Judgment, 'ii 224 n.289. All the other cases cited in Tadii: that specifically addressed the question required subjective foreseeability. See e.g.. Tadic Appeal Judgment ii 224 nn.287, 288 and Id. 'il'il Id. il'il Id. 'il'il

14 2014] PROBLEM OF RISK IN INTERNATIONAL CRIMINAL LAW 679 common law countries. 101 From its survey of these sources, the Tadic Court concluded that there was a "consistency and cogency of the case law and the treaties" that supported the conclusion that JCE III was customary international law. 102 It observed, however, that the "major legal systems of the world [do not] take the same approach to this notion." 103 And, while the mens rea "was not clearly spelled out" in those cases, a fair inference was that they "required that the event must have been predictable." 104 Several paragraphs later, the Court was even more specific regarding what level of foresight was required when it said, "everyone in the group must have been able to predict the result." 105 By requiring that deviatory crimes be predictable to every member of the JCE, the Appeals Chamber established a mens rea for attributing liability via JCE III that substantially exceeds "mere foreseeability." 106 Former ICTY Judge Shahabuddeen, who also was on the panel that decided Tadic, described the mens rea as exceeding awareness: In Tadic, the Appeals Chamber did use the word 'aware' but its judgment shows that it was speaking of more than awareness. It was referring to a case in which the accused, when committing the original crime, was able to 'predict' that a further crime would be committed by his colleagues as the 'natural and foreseeable consequence of the effecting of [the] common purpose' of the parties... and that he nevertheless 'willingly' took the 'risk' of that further crime being committed. 107 Thus, JCE III liability occurs only when the risk of a crime outside the common purpose was "a predictable consequence of the execution of the common design." 108 Predictability or foreseeability, in tum, is directly linked to the purpose of the JCE in which the defendant intentionally participated. 109 This goes well beyond a general awareness that other 10 I. Id. ilil Id. ii Id. ii Id. ii Id. ii 220 (emphasis in the original) Ambos, supra note 24, at Prosecutor v. Brdanin, Case No. IT A, Decision on Interlocutory Appeal, ii 7 (Int'! Crim. Trib. for the Former Yugoslavia Mar. 19, 2004) (Separate Opinion of Judge Shahabuddeen) Tadic Appeal Judgment ii Some of the cases discussed in Tadic describe a causal relationship between the agreed upon crime and the deviatory crime. "'For there to be a relationship of material causality between the crime willed by one of the participants and the different crime committed by another, it is necessary that the latter crime

15 680 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 13:667 crimes might occur. Instead, it requires that the defendant be able to predict a specific crime that actually did occur and that he "willingly" took that risk. 110 Thus, in Tadic, murder was a predictable consequence of ethnic cleansing by the commission of inhumane acts directed at the non Serb population of Prijedor. 111 From the foregoing analysis, two points regarding the Tadic Appeals Chamber's approach to risk are clear: (1) foreseeability requires knowledge of the risk of commission of specific crimes that could have been, but were not, part of the agreement or common plan, and (2) the test is actual foreseeability (subjective) and not reasonable foreseeability (objective). Unfortunately, not all the post-tadic courts have seen it that way, especially on the question of whether the assessment of risk awareness is a subjective 112 or objective determination. 113 Another source of disagreement among the post-tadic courts regards the substantiality of the risk, i.e., how likely it is that the risk will should constitute the logical and predictable development of the former."' Tadic Appeal Judgment 'IJ 218 (quoting Mannelli, a decision of the Italian Court ofcassation, July 20, 1949) See, e.g., Brdanin, Case No. IT A, Judgment, if 411 (Int'I Crim. Trib. for the Former Yugoslavia Apr. 3, 2007) (stating that the deviatory crime was foreseeable "in order to carry out the actus reus of the crimes forming part of the common purpose"); Prosecutor v. S. Milosevic, Case No. IT T, Decision on Motion for Judgment of Acquittal, 'II 292 (lnt'i Crim. Trib. for the Former Yugoslavia June 16, 2004) (observing it was foreseeable that genocide would be committed by other participants in the JCE "as a consequence of the commission of those crimes [that were part of the common plan]") Tadic Appeal Judgment if 232. I 12. See, e.g., Kovcka, Appeal Judgment ii 86 ("A participant may be responsible for such crimes only if the Prosecution proves that the accused had sufficient knowledge such that the additional crimes were a natural and foreseeable consequence to him."); Prosecutor v. Krstic, Case No. IT A, Judgment, if 150 (Int'I Crim. Trib. for the Former Yugoslavia Apr. 19, 2004) (holding that "it is sufficient that their occurrence [other criminal acts] was foreseeable to him"); Prosecutor v. Stakic, Case No. IT A, Judgment, 'II 65 (Int'! Crim. Trib. for the Former Yugoslavia Mar. 22, 2006) ("[T]he crime must be shown to have been foreseeable to the accused in particular.") 113. Prosecutor v. S. Milosevic, Case No. IT-02-54, Decision on Motion for Judgment of Acquittal, 'IJ 290 (Int'I Crim. Trib. for the Former Yugoslavia June 16, 2004) (stating that attribution is appropriate if "it was reasonably foreseeable to him" that other crimes would be committed by a participant in the joint criminal enterprise); Prosecutor v. Brdanin, Case No. IT A, Decision on Interlocutory Appeal, 'II 5 (Int'] Crim. Trib. for the Former Yugoslavia Mar. 19, 2004), available at (stating that it is sufficient that it was "reasonably foreseeable to the accused that the crime charged would be committed by other members of the joint criminal enterprise"); A,,;icus Curiae Brief of Professor Antonio Cassese, at , Prosecutor v. Kaing ("Duch"), Case No. 001/ ECCC/OCIJ (PTC 02), (Extraordinary Chambers in the Courts of Cambodia Oct. 27, 2008) ("It would, however, also be necessary for the 'secondary offender'... to be in a position, under the man of reasonable prudence test, to predict the rape.").

16 2014] PROBLEM OF RISK IN INTERN A TJONAL CRIMINAL LAW 681 materialize, because de minimus risks should not result in criminal. h 114 pums ment. The Tadic Court set the risk level that deviant crimes will occur at "most likely." 115 A subsequent ICTY Trial Chamber stated that "most likely" means "probable (if not more)." 116 But, according to the Trial Chamber, because Tadic said that its standard was the same as dolus eventualis, that "would seem to reduce [the risk]... to a possibility." 117 It is not at all clear why the Trial Chamber opted for "possibility,'' especially since it acknowledged that there are stronger and weaker versions of dolus eventualis. 118 Moreover, Professor Cassese observed that a "good definition" of dolus eventualis is found in the New York Penal Law, inspired by the Model Penal Code, which requires that the defendant is "aware of and consciously disregards a substantial and unjustifiable risk that such result will occur." 119 The drafters of the Model Penal Code described recklessness as an "awareness... of risk, that is of a probability less than substantial certainty." 120 The risk is substantial and unjustifiable if consciously disregarding it is a "gross deviation from the standard of conduct that a law-abiding person in the actor's situation would observe." 121 Thus, the Model Penal Code defines recklessness "in terms of both greater risk and subjective awareness." 122 Tadic is essentially consistent with this approach. The deviant crime must be related closely enough to the common plan that the risk of its occurrence is a "natural and foreseeable consequence" of carrying out the common plan (substantial risk). The specific deviant crime that occurs must have been predictable to every member of the JCE (actual 114. David M. Treiman, infra note 121, at Tadic Appeal Judgment i Prosecutor v. Brdanin and Talic Case No. IT PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, ii 29 (Int'! Crim. Trib. for the Former Yugoslavia June 26, 2001) Id Id. if 29 n.112. ("The extent to which the possibility must be perceived differs according to the particular country in which the civil law is adopted, but the highest would appear to be that there must be a "concrete" basis for supposing that the particular consequence will follow."); see also Kai Ambos, Critical Issues in the Bemba Confirmation Decision, 22 LEIDEN J. OF INT'L L. 715, 718 (2009) ("In this regard one must not overlook the fact that the 'commonly agreed' standard [for dolus eventualis] invoked by the Chamber is by no means the only one.") Cassese, supra note 33, at 67 n.21 (quoting N.Y. PENAL CODE 15.05(3)); see also MODEL PENAL CODE 2.02 (2)(c) (1985) MODEL PENAL CODE 2.02 cmt. 3(1985) Id.; David M. Treiman, Recklessness and the Model Penal Code, 9 AM. J. CRIM. L. 281, 337 (1981 ) Wayne R. Lafave, CRIMINAL LAW 5.4 (b), n.26 (5th ed. 2010).

17 682 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW (VOL. 13:667 awareness). And, finally, the defendant must willingly take the risk (conscious risk taking). 123 Nonetheless, the post-tadic ICTY cases are in disarray. 124 Little wonder, then, that Tadic has been criticized for its inherent instability and d d ten ency to pro uce mcons1stent resu ts. III. FROM THE ICTY TO THE ICC As the caseload at the ICC began to ramp up, it was apparent that the ICTY's approach to recklessness approach lacked clarity. 126 Tadic 's formulation (some say creation) of JCE III had been widely criticized. 127 There was disagreement whether the mens rea for JCE III was objective or subjective and the ICTY had adopted no clear standard for risk quantification. 128 Moreover, neither the language nor the drafting history of Article 30 suggested that it embraced recklessness. 129 It was, therefore, somewhat surprising that in the first opinion dealing with the subject, ICC Pre-Trial Chamber I concluded that Article 30 "also encompasses other 123. See supra pp Compare Prosecutor v. Krstic, Case No. IT A, Judgment i! 150 (Int'! Crim. Trib. for the Former Yugoslavia Apr. 19, 2004) ("[T]he accused participated in that enterprise aware of the probability that other crimes may result."); Prosecutor v. Brdanin, Case No. IT A, Decision on Interlocutory Appeal, ii 5 (Int'! Crim. Trib. for the Former Yugoslavia Mar ) (stating that JCE Ill liability for deviant crimes is established if the accused participated in the enterprise "with the awareness that the commission of that agreed upon crime made it reasonably foreseeable to him that the crime charged would be committed") with Prosecutor v. S. Milosevic, Case No. IT-02-54, Decision on Motion for Judgment of Acquittal ii 290 (Int'! Crim. Trib. for the Former Yugoslavia June 16, 2004) (stating that the crime charged must be a "possible consequence" of executing the JCE); Prosecuctor v. Stakic, Case No. IT T, Judgment ii 587 (Int'! Crim. Trib. for the Former Yugoslavia July 31, 2003) (equating dolus eventualis to the U.S. concept of reckless or "depraved heart" murder and observing that "if the killing is committed with 'manifest indifference to the value of human life', even conduct of minimal risk can qualify as intentional homicide."). See also Prosecutor v. Bemba Gombo, Case No. ICC /08, Pre-Trial Chamber 11, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ii 363 (June 15, 2009) [hereinafter Bemba Decision] See Harmen van der Wilt, Guilty by Association: Joint Criminal Enterprise on Trial, 5 J. INT'L. CRIM. L. 91, 101 (2006) See supra notes and accompanying text See supra note 52 and accompanying text Seesupranotes 112, 113, 124,and 125 and accompanying text THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE 205 (Roy S. Lee ed., 1999). There was agreement that, in principle, all the crimes within the jurisdiction of the Court would require intent and knowledge unless specifically provided otherwise. After it was pointed out that the word recklessness did not appear anywhere in the definitions of crimes, it was agreed that a definition of that concept was unnecessary. The article was then adopted. See also WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT (2001 ).

18 2014] PROBLEM OF RISK IN INTERNATIONAL CRIMINAL LAW 683 forms of the concept of do/us [ eventualis] which have already been resorted to by the jurisprudence of the ad hoc tribunals." 130 Some scholars endorsed the opinion; 131 others did not. 132 Two years later, in the Bemba decision, Pre-Trial Chamber II reached the opposite conclusion. 133 The Pre-Trial Chamber looked to the language of Article 30 that requires at minimum, "[ u ]nless otherwise specified," that a defendant have an "awareness that... a consequence will occur in the ordinary course of events." 134 The Pre-trial Chamber concluded that this language "does not accommodate a lower standard than the one required by do/us directus in the second degree (oblique intention)." 135 Later on, after observing that Article 30 requires that the "occurrence is close to certainty," the Pre-Trial Chamber opined that "[t]his standard is undoubtedly higher than the principal standard commonly agreed upon for do/us eventualis-namely, foreseeing the occurrence of the undesired consequences as a mere likelihood or possibility." 136 Bemba too had its detractors 137 and supporters. 138 Thus, the issue was joined and awaited (at least temporary) resolution in the ICC's first Trial Chamber decision PTC Decision ii 352 (citing the Tadic Appeal Judgment ii 219 and the Stakic Trial Judgment ij 587) Thomas Weigend, Intent, Mistake, and Co-Perpetration in the Lubanga Decision on Confirmation of Charges, 6 J. INT'L CRIM. JUST. 471, 484 (2008) (approving the Pre-Trial Chamber's inclusion of a strong form of do/us eventualis as consistent with Article 30) Jens David Ohlin, Joint Intentions to Commit International Crimes, 11 CHI. J. INT'L L. 693, 724 (2011) (observing that "it is not at all clear" that do/us eventual is satisfies the requirements of Article 30) Bemba Decision ii Rome Statute, art. 30 (I), (2)(b),(3) Bemba Decision ii 360. The Pre-Trial Chamber defined do/us directus in the second degree as: Do/us Directus in the second degree does not require that the suspect has the actual intent or will to bring about the material elements of the crime, but that he or she is aware that those elements will be the almost inevitable outcome of his acts or omissions, i.e., the suspect 'is aware that [... ] [the consequence] will occur in the ordinary course of events' (article 30(2)(b) of the Statute). Id. ij Id. ijij Kai Ambos, Critical Issues in the Bemba Confirmation Decision, 22 LEIDEN J. INT'L L. 715, 718 (2009) ("In this regard one must not overlook the fact that the 'commonly agreed' standard invoked by the Chamber is by no means the only one. In fact, there are other, more cognitive concepts of do/us eventual is (requiring awareness or certainty as to a consequence) and these may indeed be included in Article 30.") 138. Johan D. van der Vyver, Prosecutor v. Jean-Pierre Bemba Gombo, 104 AM. J. lnt'l L. 241 (2010).

19 684 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW (VOL. 13:667 A. Lubanga In Prosecutor v. Lubanga, the Trial Chamber defined co-perpetration in Article 25(3)(a) of the Rome Statute as including a risk-taking element. 139 It held that committing a crime jointly with another or through another person provided for liability based on co-perpetration. 14 Coperpetration, in turn, requires adherence by the defendant to an agreement or common plan... The plan can, but need not, be "intrinsically criminal," so long as it includes "a critical element of criminality." 141 The "critical element of criminality" has both an objective and subjective element. The objective element is satisfied if the "implementation [of the plan] embodies a sufficient risk that, in the ordinary course of events, a crime will be committed." 142 The subjective element, found in Article 30(3), is satisfied if the "co-perpetrators are aware of the risk that the consequence, prospectively, will occur." 143 In addition to agreeing to the common plan and being aware of its risk of criminality, the defendant must make an "essential contribution" to its implementation. 144 Whether the contribution is essential "is to be based on an analysis of the common plan and the role that was assigned to, or was assumed by the co-perpetrator, according to the division of tasks." 145 Moreover, there must be proof that the defendant "was aware that he provided an essential contribution to the implementation of the common plan." 146 Finally, the crime must be "the result of the combined and coordinated contributions of those involved, or at least two of them." 147 As to the mens rea, the Trial Chamber's opinion is hardly a model of clarity. Having predicated liability on a plan that presented a risk that a certain result would occur, the Trial Chamber acknowledged that at the time the plan was formed, at best, the co-perpetrators could only have an 139. Lubanga Judgment ~ii id. ii id. ii id. ii id. ii Lubanga Judgment ii 999. The Trial Chamber thus rejected both the Pre-Trial Chamber's conclusion, urged by the defense, that the defendant's role had to be a conditio sine qua non of the crime; that is, that the failure of the defendant to perform the tasks assigned to him would frustrate the plan. It also rejected the prosecutor's argument that the defendant's contribution need only be "substantial." id. ilil id. i Id. ii Id.~ 994.

20 2014] PROBLEM OF RISK IN INTERNATIONAL CRIMINAL LAW 685 awareness of a contingent result, even as to the crimes they had agreed upon, until those crimes were committed. 148 Article 30 of the Rome Statute sets out the mental element that must be proved in order for a defendant to be held criminally responsible for a crime within the jurisdiction of the Court. "Unless otherwise provided," the prosecution must prove "intent and knowledge" as to each material element. 149 Similar to the approach taken in the Model Penal Code, different mental states relate to different material elements. 150 As to a conduct element, the person must act with intent; that is, the "person means to engage in the conduct." 151 As to the result or consequence, the defendant may either intend to cause the consequence or be aware (know) that the consequence "will occur in the ordinary course of events." 152 From the language in Article 30(2)(b) of the Rome Statute, the Trial Chamber concluded that co-perpetration requires an "awareness" of the risk that a consequence of the agreement or common plan "will occur in the ordinary course of events." 153 The Trial Chamber, however, rejected the Pre-Trial Chamber's conclusion that Article 30 encompasses dolus eventualis, 154 because the drafting history of the Rome Statute "suggests" that this form of mens rea was not included in Article According to the Trial Chamber, the distinction between the knowledge required by Article 30 and dolus eventualis is that Article 30 requires awareness that consequences "will occur," while dolus eventualis requires only awareness that the consequences "may occur." 156 Despite the Trial Chamber's insistence that its approach to the mens rea required for the "risk" element of co-perpetration is different from the Pre-Trial Chamber's, on closer examination, their differences appear to be more a matter of labeling than substance. 157 The Pre-Trial Chamber identified two forms of do/us eventualis: substantial risk and low risk. It defined the objective element of substantial risk as a likelihood that that 148. Id. i11012 ("The co-perpetrators only 'know' the consequences of the conduct once they have occurred.") Rome Statute, supra note 3, art. 30(1) Compare Rome Statute, supra note 3, art. 30(1), (2), (3), with MODEL PENAL CODE 2.02(2) (1985) Rome Statute, supra note 3, art. 30(2)(a) Id. art. 30(2)(b ) Lubanga Judgment '1!' Lubanga PTC Decision ii Lubanga Judgment '1! Id PTC Decision '1!'

21 686 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 13 :667 the risk "will occur in the ordinary course of events." 158 In substantial risk situations, the defendant's mens rea is established by proof that she was aware of the substantial likelihood that her actions "would result" in the commission of a crime and her decision to act "despite such awareness." 159 In low risk situations the defendant "must have clearly or expressly accepted the idea" that the crime "may" occur. 160 In substantial risk situations, there is little, if any, practical distinction between the language used by the Pre-Trial Chamber and that used by the Trial Chamber. At one point the Trial Chamber defines knowledge of a future event, per Article 30(3), as "awareness by the co-perpetrators that a consequence will occur (in the future), [which] necessarily means that the co-perpetrators are aware of the risk that the consequences, prospectively, will occur." 161 Later on, it stated its view that awareness of a future consequence "means that the participants anticipate, based on their knowledge of how events ordinarily develop, that the consequence will occur in the future." 162 And finally, the Trial Chamber found that when the co-perpetrators agree on the common plan, they "must know [of] the existence of a risk that the consequence will occur" and the "degree of the risk... must be no less than awareness on the part of the co-perpetrator that the consequence 'will occur in the ordinary course of events.' A low risk will not be sufficient." 163 What does this mean other than that the risk of the commission of a crime must have been substantial at the time the defendants entered into the common plan? 164 Moreover, this approach is practically the same as that of the Pre-Trial Chamber. 165 In substantial risk cases, the Pre-Trial Chamber characterized the requisite level of awareness as "the substantial likelihood that his or her actions or omissions would result in the realisation of the objective elements of the crime." 166 Thus, at least in the substantial risk cases, there appears to be no significant difference in the 158. Id. ii Id Id. ii agree with Professor Weigand that the Pre-Trial Chamber's formulation of low risk do/us eventual is, if that form exists, would not satisfy Article 30(2)(b) of the Rome Statute. Weigand, supra note 131, at Lubanga Judgment ij Id. ii Id See Weigand, supra note 131, at The Pre-Trial Chamber did not say, as the Trial Chamber implied, that it is sufficient if such awareness is that the consequence "may" result from the defendant's conduct.... PTC Decision, ij Id.

22 2014) PROBLEM OF RISK IN INTERNATIONAL CRIMINAL LAW 687 approaches to mens rea taken by the Pre-Trial and Trial Chambers and, therefore, the observations of one commentator regarding the Pre-Trial Chamber's opinion are equally applicable to the Trial Chamber's opinion: Criminal lawyers from common law jurisdictions would hardly describe this mental requirement as anything close to intentional or purposeful. At most, it is a form of advertent recklessness. Criminal lawyers from civil law jurisdictions will often refer to this mental element as dolus eventualis and consider it uncontroversial, but the ICC's use of the concept here bears scrutiny. 167 If this observation is correct, and I think it is, then the very same questions about the mens rea for attributing liability that have plagued the ICTY have already surfaced in the ICC. 168 Three ICC cases (all decided before the Lubanga Trial Chamber decision) suggest that the ICC, so far, is no better than the ICTY in its approach to risk analysis. B. Bemba Jean-Pierre Bemba was the president of the Mouvement de Liberation du Congo (MLC) and commander of its military arm, the Armee. de Liberation du Congo (ALC). 169 The MLC was based in the Democratic Republic of Congo (DRC). 170 Bemba ordered MLC troops sent to the aid of Patasse, the democratically elected president of the Central African Republic (CAR). 171 According to witness testimony credited by the Pre Trial Chamber, Bemba's instructions to the MLC troops were to "'destabilize all the enemies' coming from the DRC" and "defend the president [Patasse]." 172 Based on this evidence, the Pre-Trial Chamber could not conclude that "Bemba was aware that, in the ordinary cours e of events, the commission of rape would be the virtually certain consequence of his action." Ohlin, supra note 23, at In this regard, it is important to note that the Lubanga Trial Chamber was dealing only with the issue of mens rea for crimes that were part of the agreement or common plan. Lubanga Judgment, ii 1. In fact, illegally enlisting child soldiers was the only international crime charged in furtherance of the common plan "to ensure that the UPC/FPLC had an army strong enough to achieve its political and military aims." Id ii Bemba Decision if Id. ij id. ij Id Id ij 396.